BY THE COURT
Premeditated intentional murder and felony murder are not
separate and distinct crimes, notwithstanding their
considerable differences. Rather, premeditated murder and
felony murder are alternative ways by which a person can
commit the singular crime of first-degree murder.
the State prosecutes a defendant for first-degree murder
under the alternate theories of premeditated intentional
murder and felony murder, the jury must consider both
theories before arriving at a verdict on the charge of
first-degree murder. If the jury finds a defendant guilty
under either theory of first-degree murder, it does not
consider second-degree murder or any other lesser included
defendant may not invite and lead a district court into
making an error and then complain of the error on appeal. The
invited error doctrine may preclude a challenge to an
instruction when the district court gives a defendant's
requested instruction to the jury; when the defendant agrees
on the record to the specific wording of a jury instruction;
or when the defendant proposes the district court's
response to a jury question.
presented with competing expert opinion testimony, a district
court judge acting as fact-finder has the authority and
responsibility to assess witness credibility and to weigh the
conflicting evidence in order to reach a decision, even
though the ruling may comport with one expert opinion and
contradict another expert opinion. In the circumstance where
a district court is presented with competing and conflicting
expert opinion testimony, an appellate court will accord a
great deal of deference to the district court's decision.
is an abuse of discretion for a district court to adopt a
pretrial ruling that disposes of a discretionary
determination automatically, without analyzing the factors
that would enter into the discretionary decision;
i.e., it is an abuse of discretion to refuse to
exercise discretion or to fail to appreciate the existence of
the discretion to be exercised in the first instance.
faced with a cumulative error claim, an appellate court
conducts an unlimited review of the entire record to
determine whether the totality of the circumstances
establishes that the cumulative effect of trial errors
substantially prejudiced the defendant and denied the
defendant a fair trial.
from Johnson District Court; Thomas Kelly Ryan, judge.
Judgment of the district court is affirmed.
A. Kaul, of Kansas Appellate Defender Office, argued the
cause and was on the brief for appellant.
J. Obermeier, senior deputy district attorney, argued the
cause, and Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, were with him on the brief for
convicted Maurice Orlando Stewart of felony murder,
aggravated robbery, burglary, and theft for incidents
occurring in a hotel room occupied by Stephen Cook, located
in the same facility where Stewart was staying at the time.
Stewart was accused of burglarizing Cook's room to steal
a laptop computer and later returning to the room to kill
Cook while robbing him of his wallet. The district court
imposed a controlling sentence of life without the
possibility of parole for 20 years plus 102 months.
direct appeal to this court, Stewart argues that (1) the
district court erred in instructing the jury on the
State's alternative theories of first-degree murder; (2)
the district court failed to properly instruct the jury on
the element of force required for aggravated robbery; (3) the
district court erred in finding him competent to stand trial;
(4) the district court erred in admitting blood spatter
evidence over Stewart's objection that it did not conform
to the test from Frye v. United States, 293 F. 1013
(D.C. Cir. 1923); and (5) cumulative error denied him a fair
trial. Finding no reversible error, we affirm Stewart's
and Procedural Overview
events leading to Stewart's convictions began to unfold
on June 27, 2010, when Cook checked into room 221 at the
Econo Lodge in Olathe. Cook worked as a supervisor of a
company that was pressure testing a pipe system close by in
Kansas City, Missouri. Stewart; his girlfriend, Stephanie
Laguna; and her son were staying in room 223, next door to
next day, sometime around late morning or early afternoon,
Edye Pool visited her ex-boyfriend, Stewart, at room 223
while Laguna was at work. Stewart gave Pool a laptop without
attachments or accessories, telling her it was stolen. At
approximately 7 p.m., the Olathe Police Department dispatched
an officer to investigate a burglary in room 221, where Cook
told the officer that, after work, he discovered his laptop
missing, although the carrying case and power cord were still
in the room. Laguna would relate that Stewart left their room
around 10 or 10:30 p.m. that same day, but she would later
hear someone running water in the bathroom.
the next day, about 1 a.m., Leeana Deherrera answered the
front door of the apartment she shared with Tremain Ryan and
two sons, less than a mile from the Econo Lodge. Ryan was not
home at the time. Stewart stood at the doorway, appearing
panicked and out of breath, as if he had been running.
Deherrera and Ryan had known Stewart for approximately 12
years. Stewart said that "somebody tried to kill him,
" and said that he needed to see his brother. Deherrera
directed Stewart to the apartment above her but later went up
to check on him. She found Stewart in the bathroom cleaning
himself and observed that his jeans were "covered in
blood" from the mid-thigh to the shins; that he had a
cut on his arm; and that he put his bloody clothes in a black
trash bag. He would not answer Deherrera's question as to
how he cut his arm.
Ryan returned home around 1:30 a.m., he took photographs
while Deherrera helped stitch up and bandage the cut on
Stewart's arm. Stewart told Deherrera and Ryan that three
men had followed his car from a gas station to the motel and
jumped him, with one trying to cut his neck. Deherrera and
Ryan had not known Stewart to own a car. Stewart also told
Ryan, "I think I may have killed somebody." Stewart
showed Ryan the black trash bag containing his bloodied
clothes and told Ryan he intended to "burn them."
At some point, Stewart mentioned to Ryan that a "gay
guy" had come to his aid after the fight with the three
men and that he had "stabbed" or "stuck"
this man because he had "sexually hit on him."
According to Ryan, Stewart had strong opinions against
borrowed Ryan's car around 3:30 or 4 a.m. to get Laguna
and her son from room 223. En route back to Deherrera and
Ryan's apartment, Stewart told Laguna he did not go to
the hospital for his arm injury because he "did not want
to have any involvement with law enforcement." Sometime
after 6 a.m., Stewart left the apartment with Pool, Laguna,
and her son, taking the black trash bag containing his
bloodied clothes with him.
coworkers became concerned when he did not show up for a 7
a.m. meeting. After repeated failed attempts to reach Cook by
phone, Cook's boss went to the Econo Lodge. When
Cook's boss and the night manager went up to room 221 and
opened the door, they found Cook dead on the floor of the
bathroom in a pool of blood.
scene investigators observed a room in disarray and "a
substantial amount of blood." The investigators
collected swabs from extensive bloodstains throughout
Cook's room. Investigators also found multiple footwear
impressions in room 221 and leading next door to room 223,
where they found bloodstains in the bathroom and recovered
some towels and a t-shirt with staining.
that day, Deherrera and Ryan contacted the police after
watching press coverage of a murder at the Econo Lodge. Based
on the information provided by Deherrera and Ryan, detectives
began trying to locate Stewart as a potential suspect in the
murder of Cook.
same day, at approximately 10 p.m., a City of Mission police
detective conducted a traffic stop of a truck driven by Pool.
During a later inventory search of the truck, the detective
found a wallet under the driver's seat containing a
business card with the name "Stephen Cook." Pool
told police that Stewart asked her to hide the wallet. The
crime scene investigator who processed the wallet found
Cook's California driving license and 23 receipts, 4 of
which had bloodstains. Forensic DNA testing on the wallet and
receipts identified both Stewart's and Cook's DNA.
subsequently determined that Stewart boarded a Greyhound bus
travelling from Kansas City, Missouri, to Dallas, Texas, on
June 30, 2010. Wichita police arrested Stewart at a scheduled
stop in Wichita that same day.
Olathe police detectives interrogated Stewart in Wichita.
Stewart initially denied having been in Cook's room prior
to his death, but when confronted with the evidence of the
stolen laptop, he admitted to the burglary and theft. As for
Cook's death, Stewart asserted that he had acted in
self-defense, relating different versions of what happened
when he and Cook went to room 221 after Cook had saved
Stewart from the attackers outside of the motel.
first, Stewart told detectives that Cook, who he repeatedly
referred to as a "fag, " went into the bathroom,
came out without a shirt on, propositioned Stewart, and tried
to pull at Stewart's pants as he sat on the bed. When
Stewart kicked Cook away, Cook brandished a knife and cut
Stewart's arm. Stewart then tried to run from the room
but tripped and fell. Cook continued toward Stewart, and
Stewart kicked Cook's legs. As Cook fell, Stewart grabbed
Cook's arm, causing Cook to cut his own neck. Stewart
then fled the room. Stewart maintained that he never had the
knife in his hand and did not know what happened to the knife
or what it looked like. The knife used as the murder weapon
was never located.
rehashing what happened, Stewart added that Cook had crawled
after him and their struggle eventually ended up in the
bathroom. Later, Stewart changed his story-in the first
version, Stewart said that his pants had stayed on when Cook
grabbed them, but in a later version Stewart said his pants
had come down. Stewart also added the details that Cook had
grabbed Stewart's "penis or testicles" in
varying places in the room and that Cook exposed himself to
Stewart during the attack, then buttoned himself back up and
continued to attack him.
the detectives challenged Stewart's story that he never
had the knife and that Cook had cut his own neck, Stewart
said that he had the knife once and that he cut Cook only
once. Stewart demonstrated himself cutting Cook, but it
appeared to the detectives as if Stewart was striking his own
arm in the area where he had been stitched. When confronted
about the number of injuries to Cook, Stewart changed his
story to having cut Cook four or five times. Stewart also
described being on the bed in varying positions when Cook
allegedly cut Stewart's arm. Stewart's various
descriptions of events did not include any struggle or
bloodshed having occurred on the west side of the room, where
law enforcement collected some of the evidence.
State charged Stewart in the alternative with first-degree
premeditated murder and first-degree felony murder, and with
the aggravated robbery of Cook's wallet. The State also
charged Stewart with the burglary of Cook's hotel room
and the theft of his laptop.
lengthy procedural history ensued over the next 40 months
before Stewart's jury trial commenced in October 2013.
Two of the district court's pretrial rulings are germane
2011, Stewart filed a motion seeking a Frye hearing
on the admissibility of DNA evidence and blood spatter
evidence, with the goal of excluding testimony from Jeremiah
Morris, a blood spatter expert. At an unrelated suppression
hearing in August 2011, Judge Stephen R. Tatum ruled that the
blood spatter evidence did not trigger a Frye
analysis because the evidence did not qualify as new or
experimental. Judge Tatum clarified that the defense was free
to revisit the issue if anything new came up and could raise
the issue at trial if necessary to challenge Morris'
qualifications or conclusions.
March 2012, Stewart's attorney filed a motion requesting
a competency determination. The district court, relying on a
competency evaluation report from the Johnson County Mental
Health Center, found Stewart competent to stand trial. The
defense subsequently moved to reopen the issue of competency
and to commit Stewart to Larned State Hospital. The district
court, after considering conflicting expert opinions, sent
Stewart to Larned, where doctors found Stewart competent to
stand trial after observing and evaluating him for 90 days.
At a competency hearing in March 2013, the defense presented
evidence from two experts who opined that Stewart was
incompetent to stand trial. Three experts for the State
testified that they reached the opposite conclusion. The
district court, after considering the evidence, found Stewart
competent to stand trial.
the 8-day jury trial, defense counsel informed Judge Thomas
Kelly Ryan she intended to renew the pretrial objection to
the admission of both DNA and blood spatter evidence to
ensure that there was a contemporaneous objection in the
record. When defense counsel subsequently objected to the
admission of the DNA evidence, Judge Ryan ruled,
"I'm not going to make any different ruling from
what Judge Tatum had done in the prior hearings. You can
bring up the blood spatter when we get to that point."
analyst testified that Cook's DNA had been identified in
numerous bloodstains found in his room 221. Stewart's DNA
was identified on a sock found under Cook, in the hallway
leading to Stewart's room 223, and in the bathroom in
room 223. A forensic scientist testified that several
footprint impressions found in Cook's room, including
impressions left on Cook's shoulder and buttocks, either
could be or were from Stewart's shoes.
before the State called Morris to the stand, defense counsel
renewed the pretrial objection challenging the scientific
reliability of the blood spatter evidence under
Frye. Judge Ryan clarified that he was unable to
locate any written order by Judge Tatum with regard to the
blood spatter evidence. Defense counsel informed Judge Ryan
there was no written order and that the issue was addressed
at a suppression hearing. Judge Ryan explained, "I just
wanted to make sure for the record that it is there, "
and then ruled, "I'm going to abide by what the
previous ruling is by Judge Tatum and overrule the objection
at this point." Judge Ryan made no additional findings
of fact and did not otherwise elaborate on the reasons for
his conclusions. Stewart did not request any additional
findings from the court.
counsel again objected when the State attempted to introduce
Morris' PowerPoint presentation explaining his blood
spatter analysis and conclusions. Defense counsel based this
renewed objection, which was tantamount to a motion to
reconsider, on the same scientific reliability argument that
underlay the pretrial objection.
testified that he had spent 3 days at the crime scene
conducting a bloodstain pattern analysis to determine where
the bloodshed first occurred in room 221 and how it continued
into room 223. Morris concluded that the bloodshed from the
struggle in room 221 began on the west side of the bed,
moving eastward to end in the bathroom. He said the
bloodstains were consistent with the victim being on or near
the ground while the assailant was in an upright position.
forensic neuropathologist who performed the autopsy on Cook
testified Cook's death was a homicide. Cook died from a
combination of profuse bleeding from 24 to 40 superficial
sharp-force injuries or knife cuts and his underlying severe
heart and lung disease, including advanced emphysema. Cook
also had a fracture of the sternum, or breastbone, 11 broken
ribs, and 4 defensive wounds on his right palm where he
grabbed or attempted to ward off the knife blade. The
forensic neuropathologist believed that Cook did not die
immediately and might have survived his injuries had he
received immediate medical attention.
defense theory was that Stewart killed Cook in self-defense
after Cook attacked and injured Stewart with a knife when
Cook's sexual advances were rejected. To corroborate the
theory and Stewart's version of events relayed during his
interrogation, defense counsel sought to portray Cook as a
severe alcoholic who led a promiscuous homosexual lifestyle,
soliciting men while he traveled the country and becoming
verbally and physically abusive when drinking. Defense
counsel characterized Stewart's murderous act as a
post-traumatic stress disorder (PTSD) "panic
reaction" to Cook's sexual advances and assault.
jury convicted Stewart of felony murder based on the
underlying felony of aggravated robbery; aggravated robbery
of Cook's wallet; burglary; and theft of Cook's
laptop computer. The court imposed a hard-20 life sentence
plus 102 months.
timely appealed. This court has direct-appeal jurisdiction
under K.S.A. 2015 Supp. 22-3601(b)(3) and (4) (off-grid